COURT FILE NO.: CR-21-30000155
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDIHAKIM SAEED
Defendant
Paul Kelly, Counsel for the Crown
Susan Pennypacker, Counsel for the Defence
HEARD: June 14-16, 2021
M.A. CODE J.
REASONS FOR JUDGeMENT
ON TWO PRE-TRIAL MOTIONS
A. OVERVIEW
[1] The accused Abdihakim Saeed (hereinafter, Saeed) is charged in an eight count Indictment with the following offences: possession of a loaded prohibited or restricted firearm, contrary to s. 95 of the Criminal Code; careless use of a firearm, contrary to s. 86; four further firearm offences, contrary to ss. 91, 92, 94, and 108; leaving the scene of an accident, contrary to s. 252; and dangerous driving, contrary to s. 249. The Indictment is scheduled for trial with a jury in this Court on October 12, 2021.
[2] On June 10, 2021, an Order was made pursuant to s. 551.1 appointing me as a “case management judge”. Two pre-trial Motions then proceeded, from June 14 to 16, 2021. The first Motion alleged a violation of Saeed’s s. 11(b) Charter right to trial within a reasonable time. It was dismissed at the end of oral argument, with reasons to follow. The second Motion alleged a violation of ss. 7 and 10(b) of the Charter, seeking a remedy excluding evidence of the loaded handgun seized by the police. At the end of oral argument I reserved judgement on the second Motion.
[3] These are my Reasons for Judgement on the two pre-trial Motions.
B. FACTS
[4] The alleged offences occurred on the afternoon of September 3, 2018. In brief summary, a man must have been carrying a loaded firearm underneath his pants, while picking up an order at Domino’s Pizza on Markham Road in Scarborough. He apparently discharged the firearm by accident into the floor in front of the cashier. He fled from the scene in a white sedan that he had parked in front of Domino’s Pizza. A bullet, blood, and a shoe were recovered at the scene where the firearm was discharged. It appeared from video surveillance and from the circumstantial evidence that the man had shot himself in the foot or leg.
[5] Shortly after the above events, a white sedan traveling at a high rate of speed went through a red light at an intersection 4.5 kilometres from Domino’s Pizza. There was a collision and both cars were extensively damaged. The white sedan drove away from the scene of the collision at a high rate of speed. A damaged white sedan driving at a high rate of speed was observed some distance to the east, on Bow Valley Drive near Morningside Park. A loaded prohibited firearm was later found under a fallen tree in Morningside Park.
[6] At 3:51 p.m., the police dispatcher began deploying police units, as a result of the shooting. At 4:09 p.m., a white Nissan sedan with damage to its front and with blood in the area of the driver’s seat was found by the police parked less than one kilometre from Bow Valley Drive. A limping male who matched the description of the man who discharged the firearm in Domino’s Pizza was observed walking near the parked white Nissan sedan. This man was the accused Saeed and he was arrested at about 4:12 p.m. He had a significant injury to his leg and he was missing both shoes. A shoe that matched the shoe left at Domino’s Pizza, as well as more blood, was found in a nearby house that was associated with the accused. Saeed’s blood could not be excluded, after DNA testing, as the source of blood that was found near the gun left in Morningside Park. The white Nissan sedan was rented in Saeed’s name.
[7] In all the above circumstances, Ms. Pennypacker realistically conceded that identification will not be in dispute in this case. I will summarize certain additional facts relating to the police investigation when analysing the ss. 7 and 10(b) Charter Motion.
C. THE SECTION 11(b) CHARTER MOTION
[8] The Information charging Saeed with the above offences was sworn on September 4, 2018, the day after his arrest. The presently scheduled two and a half week jury trial is anticipated to end on October 27, 2021. The total delay at that point will be 37 months and 22 days, which is well over the presumptive 30 month Jordan ceiling for s. 11(b) delay. However, there were a total of five months of “defence delay” and there were two “discrete exceptional circumstances” totalling nine and a half months. When these periods of delay are deducted, the resulting delay of about 23 months is below the 30 month presumptive ceiling. There is no suggestion in this case that delay below the presumptive ceiling would violate s. 11(b) of the Charter. As a result, I dismissed this first pre-trial Motion at the end of oral argument. See: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.).
[9] The first period of “defence delay” occurred at the early stages of proceedings in the Ontario Court of Justice, at a point when the case was moving slowly. Between September 4, 2018 and January 18, 2019, the usual “intake” steps were completed. The accused had been granted bail and defence counsel (one L. Johnson) appeared to be on the record as she made a number of appearances, picked up disclosure, conducted a pre-trial with the Crown, and requested an adjournment for an “ongoing Crown pre-trial.” However, at the end of this four and a half month period, defence counsel advised the court that she was “not yet retained”, the Crown advised that there was further disclosure “available at our office” that had apparently not yet been picked up, and the agent for Ms. Johnson advised that the accused now had to apply for Legal Aid. She requested “a short remand”.
[10] On the next appearance, January 23, 2019, Ms. Pennypacker appeared for the first time. She advised that she had “recently been retained by Mr. Saeed”, that she needed time to obtain disclosure and “transition the file from former counsel”, and that she needed to contact the assigned Crown. As a result, two further months of delay ensued until March 27, 2019, by which time Ms. Pennypacker had obtained and reviewed the disclosure, had conducted a pre-trial with the Crown, and was ready to set a date for a JPT. In my view, the need to repeat all the preliminary “intake” steps in the case as a result of a change in counsel was “defence delay” and I would deduct two months from the total delay. See: R. v. Browne, 2020 ONSC 5244 at paras. 50-62, per. MacDonnell J.
[11] After the JPT was held on May 7, 2019, there were two further adjournments until June 4, 2019. There were various reasons for these two adjournments. In particular, defence counsel had recently realized that there was an important piece of disclosure “that the Crown thought I had,” she had now requested this further disclosure, and she needed time to review it. In addition, she needed time to obtain “instructions” and there was a potential “resolution” under discussion. The Crown seeks to characterize some of this one month period of delay as “defence delay”. I disagree. Responsible counsel was simply ensuring that she had all the necessary disclosure and all the necessary “instructions” related to both a possible “resolution” and to the mode of trial (which are both issues on which “instructions” are essential). The two short adjournments for these purposes were legitimate and necessary.
[12] On June 4, 2019, a two day preliminary inquiry was scheduled for November 6 and 7, 2019. This date was five months away and the case was well under the 18 month Jordan presumptive ceiling for Provincial Court proceedings. Indeed, after deducting the earlier two months for “defence delay”, the net delay at the time of the scheduled preliminary inquiry would have been 12 months. At this point, the first “discrete exceptional circumstance” occurred as a result of legislative changes to the right to a preliminary inquiry and the ensuing judicial interpretations of those legislative changes.
[13] On June 21, 2019, some two weeks after the date had been set for Saeed’s preliminary inquiry, Parliament passed and Royal Assent was given, to Criminal Code amendments that were previously set out in Bill C-75. These provisions abolished the right to a preliminary inquiry for all of the offences that Saeed was charged with. The legislation came into force on September 19, 2019, which was almost two months before Saeed’s scheduled preliminary inquiry. The legislation did not state whether the new amendments were retrospective or prospective. Litigation ensued, with the Attorney-General in Ontario taking the position that the legislation was procedural and retrospective and the defence bar taking the position that it affected substantive rights and was prospective. On September 27, 2019, Thomas R.S.J. decided R. v. R.S., 2019 ONSC 5497. He concluded (at para. 70):
These amendments are procedural. These amendments do not affect a vested or substantive right. As of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more.
[14] The decision of Thomas R.S.J. in R.S. was made on an Application seeking prohibition with certiorari in aid, quashing a decision of Marion J. of the Ontario Court of Justice. As a result, and as a matter of stare decisis, the decision was binding on all judges of the Ontario Court of Justice. See: R. v. R.S., infra at paras. 65-75, where the leading authorities on this point are discussed in the subsequent Court of Appeal decision. The accused in R.S. appealed and the appeal was heard on October 28, 2019. Judgement was reserved. While the appeal was pending, Ms. Pennypacker correctly advised Downes J., who was case managing the present case in the Ontario Court of Justice, that Saeed’s preliminary inquiry election would be “a nullity” unless the Court of Appeal reversed the decision of Thomas R.S.J. in R.S. On the scheduled preliminary inquiry date, November 6, 2019, the Court of Appeal had not yet released its Reasons for Judgement and Saeed’s preliminary inquiry was “vacated”, presumably due to lack of jurisdiction. Downes J. adjourned the matter to November 14, 2019 to await the Court of Appeal’s decision.
[15] On November 18, 2019, the Court of Appeal released its reasons, allowing the appeal in R. v. R.S., 2019 ONCA 906. The Court described Thomas R.S.J.’s reasons as “thorough and thoughtful” but disagreed with him, holding that the legislative amendments affected the substantive right to be discharged at a preliminary inquiry. As a result, an accused like Saeed, who had elected prior to September 19, 2019 to have a preliminary inquiry, continued to have the benefit of that right. By this point, there were further developments in Saeed’s case. He had been re-arrested on further charges that were being prosecuted federally in a different Court House. He was being held for a bail hearing and s. 524 bail revocation hearing scheduled at Old City Hall in Toronto. On December 4, 2019, bail was granted on the new charges and the Information in the present case was remanded back to the Court House in Scarborough in order to set a new date for a preliminary inquiry. On December 19, 2019 a new preliminary inquiry was scheduled for April 1 and 2, 2020, after taking into account certain difficulties with counsel’s calendar and the Court’s available dates.
[16] The above period of delay, from the “vacated” first preliminary inquiry date on November 6, 2019 to the new preliminary inquiry date on April 1, 2020, is just under five months and it is not easy to characterize for s.11(b) Charter purposes. The S.A. litigation, the new federal charges, counsel’s calendar, and the Court’s available dates all contributed to the delay. As a result, this five month period of delay needs to be apportioned.
[17] I am satisfied that the 2019 Criminal Code amendments and the resulting S.A. litigation were a “discrete exceptional circumstance”. Cavanagh J. so held in R. v. Drummond, 2020 ONSC 5495 and I agree with his reasoning. In any event, his decision should be followed, as a matter of comity between judges of coordinate jurisdiction, unless “clearly wrong”. See: R. v. Scarlett, 2013 ONSC 562 at paras. 43-4 per Strathy J., as he then was. In my view, the conflicting judicial interpretations as to the retrospectivity of the new legislative amendments was an event that was “reasonably unavoidable and unforeseeable”. The amount of delay that should be deducted because of this “discrete event” depends on the duty to mitigate. See: R. v. Jordan, supra at paras. 70 and 75 where it was held that “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted”. For example, in R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 at paras. 54-5, the Court stated:
We agree with the Crown that the emergence of this new disclosure obligation qualified as a discrete event, and would deduct a portion of the delay that followed. It was reasonably unavoidable and unforeseeable, and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded, and seeking the next earliest available dates. The Crown may have been able to take additional steps, such as disavowing any reliance on the officer’s evidence or tendering it through an agreed statement of facts. However, the requirement is that of reasonableness: the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.
That said, we would not deduct the entire five months for this event. Two months, specifically the time it took for the Crown and defence to be prepared to proceed (until late June 2013), should be deducted. However, the court was unable to accommodate them until September — that portion of delay was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan, at para. 81) and therefore those months should not be deducted. Then, because defence counsel was unavailable in September, the matter was put over until October 2013. As this one month of delay was caused by defence counsel’s unavailability (Jordan, at para. 64), and not by the preparation time necessary to respond to the charges (Jordan, at para. 65), it should be deducted.
[18] Once bail was granted on Saeed’s new charges, on December 4, 2019, the Court and the Crown moved promptly to arrange for the scheduling of a new preliminary inquiry on December 19, 2019. Defence counsel had a significant number of dates available in late January and February 2020, but the Court and the Crown were not available until March 16 and 17, 2020. Defence counsel was not available on these earliest dates offered by the Court. As a result, April 1 and 2, 2020 were the earliest dates when all parties were available. Applying the above reasoning from Jordan and Cody, as best I can, I would apportion this period of delay as follows: the initial three months of delay, from November 6, 2019 until early February 2020 was a reasonable period to ascribe to the “discrete exceptional circumstance”; systemic congestion and the inability of the Court and the Crown to “prioritize” a case that had “faltered due to unforeseen events” accounts for the next month of delay, until March 16 and 17, 2020 when the Court’s earliest available dates were offered; and finally, the last 16 days from March 16 to April 1, 2020, was due to “defence delay” as the Court and Crown were ready to proceed but the defence was not available. See: R. Mallozzi (2018), 2018 ONCA 312, 407 C.R.R. (2d) 266 (Ont. C.A.).
[19] In the result, three months should be deducted from the total delay due to a “discrete event” and a half month should be deducted as “defence delay”.
[20] The new preliminary inquiry scheduled for April 1, 2020 was cancelled, by order of the Court, due to the arrival of the Covid-19 pandemic during the previous month. Ms. Pennypacker concedes that this was a “discrete exceptional circumstance”, as no trials or preliminary inquiries were proceeding in either Court at this time. These developments were “reasonably unavoidable and unforeseeable”. See: R. v. Obregon-Castro, 2021 ONSC 1096 at paras. 38-42, where I recently set out my analysis of this issue and referred to the leading authorities.
[21] Once again, the difficult issue in analysing the period of delay that ensued from this second “discrete event” is the duty to mitigate. During the first two months of delay, for all of April and May 2020, there were no trials or preliminary inquiries being held as a result of the pandemic. These initial two months of delay were, therefore, due to the “discrete event.” The Ontario Court of Justice issued a Directive to counsel on the adjourned cases, including Saeed’s case. These cases were now part of a Covid-19 pandemic backlog that were all awaiting scheduling and rescheduling. The Directive required counsel to attend at a further JPT to reassess the status of these cases. This JPT was set for May 25, 2020, in the present case, before Speyer J. Defence counsel attended but the Crown did not attend. For all of the next three months, throughout June, July, and August of 2020, the assigned Crown did not attend to the Saeed case or engage with defence counsel, who was diligently trying to reschedule the delayed preliminary inquiry. The reason for this failure of diligence by the assigned Crown is unclear, except that he took some kind of “leave” at some point and he eventually left the Crown’s office. It is also unclear whether his failure to attend to the case and engage with defence counsel during this three month period actually caused delay. There is insufficient evidence in the record as to the exact date when the Ontario Court of Justice in Scarborough first began rescheduling the adjourned Covid-19 pandemic cases and first began conducting virtual court proceedings over the Zoom platform. It appears from the emails filed before me that September 2, 2020 may have been the earliest date when the present case could have been brought forward for a rescheduling appearance in court. In any event, the burden should be on the Crown when attempting to explain or justify its own conduct relating to the duty to mitigate. As a result, the three months of June, July, and August 2020, when the assigned Crown was essentially missing in action, should not be deducted due to the “discrete event.” On the record before me, it appears that the managers of this particular assigned Crown should have realized that he was not attending to his duties and should have reassigned his cases in a more timely way.
[22] The next development occurred on September 2, 2020 when the case was before Speyer J., who was case managing and rescheduling the adjourned cases in the Covid-19 backlog in Scarborough. Once again, the Crown did not appear. By this point, it was known that the assigned Crown was away on a “leave”. Speyer J. took charge of the matter and held it down, while instructing defence counsel to call the Deputy Crown, Ms. Juginovic. She immediately made herself available and began attending to the case in a diligent way. Speyer J. scheduled an early JPT for September 9, 2020 where Ms. Juginovic appeared. A scheduling meeting ensued with the Trial Coordinator on September 14, 2020 and a virtual preliminary inquiry date was set on September 15, 2020. This new date was set for February 17 and 18, 2021, as a hearing to be held on the Zoom platform. The Court and the Crown were available on January 13 and 14, 2021 but the defence was not available until February 17 and 18, 2021. The preliminary inquiry proceeded on this date and the accused’s committal to trial was conceded.
[23] I am satisfied that four and a half months of this final period of delay in the Ontario Court of Justice, from September 2, 2020 until January 13, 2021, was due to the Covid-19 pandemic and should be deducted as a “discrete exceptional circumstance”. The last month of delay, from January 13 until February 17, 2021, was due to defence counsel’s unavailability and should be deducted as “defence delay”. Ms. Pennypacker conceded that once the Deputy Crown, Ms. Juginovic, and Speyer J. diligently took charge of the case on September 2, 2020, a new date was quickly set for the much delayed preliminary inquiry. However, Ms. Pennypacker submits that there was a failure of the Crown and the Court to give Saeed’s case priority and offer earlier dates, in order to satisfy their duty to mitigate. I disagree. The Court system had to be significantly reorganized and reconfigured, in order to allow for virtual proceedings over Zoom. In addition, the substantial backlog of cases that had been delayed by Covid-19 during the five or six month period between March and September 2020, had to be prioritized. On July 2, 2020, the Ontario Court of Justice had issued a Notice stating that the Court would begin rescheduling cases in the following priority: in-custody continuations first; in-custody adjourned cases second; new in-custody cases third; out of custody continuations fourth; adjourned out of custody cases fifth; and new out of custody cases sixth. This order of prioritizing the delayed cases strikes me as rational and justified. It therefore appears that when the present matter came before Speyer J. two months after the above Notice was issued, in early September 2020, it was fifth in line in the prioritizing of all the backlogged cases. It is hardly surprising, in these circumstances, that the earliest dates available for an out of custody preliminary inquiry, that was not a continuation, were about four months away in January 2021. Indeed, this strikes me as reasonably expeditious, given the challenging circumstances faced by the Court. As a result, I apportioned this period of delay as set out above.
[24] After Saeed’s committal for trial on February 18, 2021, the case moved rapidly in this Court. The first appearance in Practice Court was on March 16, 2021. A JPT was scheduled two days later, on March 18, 2021, before McMahon J. Less than a week later, on March 23, 2021, the two pre-trial Motions were scheduled for June 14, 2021. In addition, trial dates were offered by the Court and the Crown for a summer jury trial commencing on July 5, 2021. However, defence counsel was not available for trial until August 23, 2021. The Court was not available to commence a three week jury trial on that late August date, because of a conflict with the Court’s statutory meeting (pursuant to the Courts of Justice Act) scheduled for the first week of September 2021. As a result of these difficulties in setting an early trial date in Saeed’s case, the Crown requested and was granted a one week adjournment in order to reconsider its decision to call certain evidence at trial. The Crown hoped to shorten the trial and find additional early dates. On March 30, 2021, the Crown advised that it would not be calling certain evidence at trial. In addition, the defence had made certain admissions. As a result, a two week jury trial was scheduled for October 12, 2021. These responsible steps taken by both counsel and the Court are to be commended.
[25] In light of the above developments in this Court, there is a further period of “defence delay”, from July 5 to August 23, 2021. The Court and the Crown were available for a three week jury trial but defence counsel was not. As a result, one month and 18 days should be deducted from the total delay as “defence delay”. See: R. v. Mallozzi, supra.
[26] In conclusion on the s.11(b) Motion, there were 37 and a half months of total delay in Saeed’s case. There were four periods of “defence delay” totalling five months, as follows: two months due to the change in counsel during the “intake” period; a half month, when rescheduling the preliminary inquiry after the Court of Appeal decision in R.S., due to defence counsel’s unavailability; one month when rescheduling the preliminary inquiry during the pandemic, due to defence counsel’s unavailability; and one and a half months, when setting the trial date in this Court, due to defence counsel’s unavailability. Finally, there were two periods of “discrete event” delay, as follows: first, three months of delay were caused by the Criminal Code amendments relating to the preliminary inquiry and the resulting R.S. litigation concerning the retrospectivity of those amendments; and second, six and a half months of delay were caused by the Covid-19 pandemic. These two periods of “discrete event” delay, totalling nine and a half months, are the amount of delay where the Court and the Crown made reasonable efforts to mitigate the delay caused by each “discrete event”.
[27] As a result of the “defence delay” and the “discrete event” delay, fourteen and a half months of delay must be deducted from the total delay. The resulting 23 months of delay is below the Jordan presumptive ceiling. For all these reasons, I dismissed the s. 11(b) Charter Motion at the end of oral argument.
D. THE SECTIONS 7 and 10(B) CHARTER MOTION
(i) Introduction
[28] The Crown concedes that there were violations of ss. 7 and 10(b) of the Charter in this case, when P.C. Loiselle interrogated Saeed shortly after his arrest and before he had been advised of his right to counsel. I agree with the Crown’s concession. These violations of ss. 7 and 10(b) are clearly made out on the record before me, as explained below. However, the Crown has sensibly agreed not to tender any of the immediate fruits of these Charter violations at trial. Saeed made a number of incriminating oral utterances to P.C. Loiselle, implicitly acknowledging that he had been in possession of the gun that was discharged and that he had disposed of it. These oral utterances will not be mentioned at trial. I would have excluded them, pursuant to s. 24(2) of the Charter, had the Crown tried to tender them in evidence.
[29] In light of the above background, there are two main issues on the ss. 7 and 10(b) Charter Motion, which seeks to exclude the firearm that the police subsequently found in Morningside Park: first, whether the firearm was “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”; and second, if the seizing of the firearm meets this initial threshold s. 24(2) requirement, whether its admission at trial “would bring the administration of justice into disrepute.” The first issue turns on the connection, if any, between P.C. Loiselle’s improper interrogation of Saeed and the finding of the firearm in Morningside Park. The second issue turns on the well-known assessment of the Grant factors relating to the gravity of the Charter violations, their impact on Saeed’s rights, and the effects of exclusion of the firearm on the truth-seeking function of the trial.
[30] The evidence tendered by the parties on this Charter Motion includes the following: the preliminary inquiry Transcript; the testimony of Detective Hayes (who was the lead detective who found the gun); one arguably important exhibit (a map of the area where the gun was found); and various Agreed Statements of Fact made both at the preliminary inquiry and on the hearing of the Motion. What is noteworthy about this body of evidence is that neither party called P.C. Loiselle. He testified at the preliminary inquiry and I have a Transcript of that evidence. However, his testimony was unclear at times and he was not always asked clarifying questions. Furthermore, I cannot properly assess his character, credibility, and reliability from the Transcript. See: R. v. Coburn (1982), 1982 CanLII 3715 (ON CA), 66 C.C.C. (2d) 463 (Ont. C.A.); R. v. Barron (1985), 1985 CanLII 3546 (ON CA), 23 C.C.C. (3d) 544 (Ont. C.A.); R. v. Humphrey, 2011 ONSC 3024 at paras. 6-7 and 90. The parties acknowledge these limitations in the record on the Motion. They agree that I can only make an objective assessment of the facts that emerge from the totality of the evidence on the Motion.
[31] The testimony at both the preliminary inquiry and on the Motion was to the effect that P.C. Loiselle was a member of a uniformed police unit known as the PSRT (Public Safety Response Team). It is a Toronto-wide unit that has its own office and that provides additional support to all the local divisions, especially in relation to shooting incidents. The officers in charge of the investigation in the present case were the Major Crime Unit at 43 Division in Scarborough. They were a six member team of plainclothes detectives. Detective Hayes was the officer in charge of the team. The police dispatcher received a 911 call from Domino’s Pizza about the shooting on Markham Road in Scarborough, which is located in 43 Division. Officers from PSRT and from the 43 Division Major Crime Unit both responded to the dispatcher’s call at 3:51 p.m.
[32] As a result of the above events, two different sets of officers working in different units (and presumably under their separate reporting structures) ended up driving to the area and looking for the suspect. The dispatcher gave the officers a description of the suspect and his white Nissan car, including a partial license plate number. In addition, the dispatcher advised that the suspect had apparently “shot himself in the foot”, there was “lots of blood” left at the scene, and the suspect may have been involved in a “hit and run” collision after fleeing from the scene of the shooting. I will summarize the evidence of P.C. Loiselle and Detective Hayes separately, as there is little overlap in their respective roles in the investigation.
(ii) The evidence of P.C. Loiselle at the preliminary inquiry
[33] P.C. Loiselle testified that at 4:09 p.m. he observed what appeared to be the damaged white Nissan car, which was parked on a residential street. Shortly after 4:11 p.m. he observed the accused Saeed “hobbling on his foot” nearby. Both the white car and Saeed matched the information provided by the dispatcher. As a result, at about 4:12 p.m. P.C. Loiselle arrested Saeed for possession of a firearm. There were “no issues” on arrest. Saeed was not in possession of the gun apparently involved in the shooting. Saeed was “bleeding heavily” from his leg and he looked “distressed.” An ambulance was called as Saeed was in need of medical attention. After handcuffing him, P.C. Loiselle had Saeed sit on the curb. The EMS paramedics arrived quickly and were on scene by 4:14 p.m. Saeed was placed on a stretcher by the paramedics. He had not yet been advised of his s. 10(b) Charter rights to counsel.
[34] It is at this point in the narrative that certain parts of P.C. Loiselle’s account become less than clear. Nevertheless, there appears to be no doubt that an approximately 11 minute period ensued (between 4:14 and 4:25 p.m.) during which Saeed was both attended to by the paramedics and was questioned by P.C. Loiselle, without being informed of his s. 10(b) Charter rights. P.C. Loiselle frankly acknowledged that he questioned Saeed about the gun involved in the shooting incident, which was “more of a priority” because of his concerns about public safety. For example, he wanted to know if the gun was “just dropped on the street.” He assumed that the gun was in “an unsafe place”. He testified that he believed the “rights to counsel is not a priority at this time because I wanted to make sure he [Saeed] was okay and seen by a paramedic.” He believed that he could delay informing Saeed of his s. 10(b) rights until “a couple of minutes after the fact when its safe to do so.” He told Saeed he “would advise him of his rights to counsel shortly … After he was somewhat treated by paramedics.” He testified that he told Saeed that he was concerned about the gun and the safety of children returning to school the next day (on September 4, 2018) and that there was a school near to the scene of the arrest. He made a “demand” that Saeed tell him “where the firearm is.” In response to these questions, Saeed told P.C. Loiselle, “it’s in the bush by G. Little School on Orton Park Road.” P.C. Loiselle asked other officers to search this area, which was nearby. He agreed that he could have advised Saeed of his s. 10(b) Charter rights during this period when he was questioning Saeed. He testified that he had two concerns that led him to both question Saeed and to delay advising him of his s. 10(b) rights: he “had concerns for his [Saeed’s] safety”; and he “had concerns for the [public’s] safety because of the gun.” He understood that police officers should not question an accused until after being advised of the right to counsel. However, he felt “justified” because “there was a safety concern for the firearm.”
[35] The paramedics continued to attend to Saeed’s injuries until 4:25 p.m. At this point, P.C. Loiselle informed Saeed of his right to counsel by reading the standard caution from the back of his police memo book and asking if Saeed understood. He replied that he understood. P.C. Loiselle then asked, “Do you wish to call a lawyer”. Saeed replied, “I don’t have one.” P.C. Loiselle said, “We can call duty counsel for you.” Saeed replied, “I am good. I am good,” which P.C. Loiselle took to mean “he was not interested” in his right to counsel. P.C. Loiselle testified that he started to read the secondary caution to Saeed, about the right to remain silent. At this point, they were inside the ambulance and Saeed was “trying to assist in finding the gun … trying to give me direction of where the gun would be … ’cause we had a good rapport … he was saying that he’s stupid that he shot himself in the foot … Abdi then wanted to show us the location, but didn’t want to have people see him showing us where the gun could be … didn’t want to have people see him, in the sense of assisting officers.” P.C. Loiselle testified that he believed Saeed “was remorseful”. However, he did not believe that Saeed waived his rights to counsel, given that Saeed was “very agitated” and “very upset”.
[36] It appears that P.C. Loiselle spoke to the EMS supervisor at this point, one John Stone, and was told that “there’d be no problem … to delay him [Saeed] attending the hospital … because they had it under control, that we can try to find the location of where the gun could possibly be … all his vital signs [were good]. I was advised we were good and he was not in any danger … we spoke for awhile inside the ambulance itself.”
[37] P.C. Loiselle testified that the ambulance was driven to the George B. Little Public School at this point. The school is only one or two blocks from the locations where the damaged white Nissan was parked and where Saeed was arrested. As they reached the school, (which was at either 4:45 or 5:15 p.m., according to P.C. Loiselle’s uncertain estimates), Saeed “started yelling to go the other way”, “he yelled back saying that we were going the wrong way”, and he said “go to Mossbank Park”. Saeed “was able to give directions to the paramedics” as to where they should drive the ambulance. P.C. Loiselle advised the searching officers “to meet us at that location. And there was a pathway to a bridge and he was giving us, ‘then go past the bridge on the right, by the tree, covered in grass.’ That’s the information … from Abdi ’cause he was advising me of the location.” P.C. Loiselle testified that the K-9 unit attended at the Mossbank Park location and so “we just left it for the unit to check out and then … we attended Scarborough General [hospital].” They arrived at the hospital at 5:25 p.m.
[38] Over three hours later, while Saeed was still receiving medical treatment at the hospital, the 43 Division detectives advised P.C. Loiselle of additional charges. As a result, at 8:55 p.m. P.C. Loiselle informed Saeed of the additional charges, re-read the s. 10(b) Charter caution, and asked Saeed “do you understand?” He replied, “Yes” and asked “did they find it?” P.C. Loiselle replied, “No” and again asked, “do you want to call a lawyer.” Saeed again replied, “I don’t have one.” P.C. Loiselle again advised that duty counsel would be provided when they arrived at the station. At 9:34 p.m., Saeed was discharged from the hospital and P.C. Loiselle drove him to the 43 Division station. At 10:00 p.m., Saeed was paraded before the officer-in-charge. Police officers at 43 Division contacted duty counsel. At 10:48 p.m., Saeed spoke to duty counsel.
[39] It is apparent from both the preliminary inquiry Transcript and from counsel’s admissions that the above account of P.C. Loiselle’s actions is set out transparently and in some detail in his police memo book notes. In other words, there was no attempt to hide or disguise the violations of ss. 7 and 10(b) of the Charter.
(iii) The evidence of Det. Hayes at the preliminary inquiry and on the Charter Motion.
[40] Detective Hayes testified at the preliminary inquiry. However, he also testified before me on the Motion. As a result, I was able to assess his character, credibility and reliability. He has been a Toronto police officer for 21 years. He responded, together with his team of detectives, to the same police radio dispatch that P.C. Loiselle and the PSRT officers responded to. At 4:11 p.m., Det. Ryan heard over the police radio that the suspect had been located. At 4:13 p.m., Det. Hayes arrived at the scene of Saeed’s arrest where he was already in the custody of uniformed PSRT officers. The white sedan was parked nearby. P.C. Loiselle was with Saeed and he informed Det. Ryan that Saeed had come from a nearby house and that others were believed to be in the house. Det. Ryan had not previously met P.C. Loiselle, as they worked for different police units based in different police stations. There was no information yet about the location of the gun involved in the shooting incident at Domino’s Pizza. Det. Ryan made brief observations of Saeed, who was seated on the curb. He appeared alert and responsive, although he was injured and bleeding. Det. Ryan did not speak to Saeed or interact with him at all.
[41] As a result of the above information, Det. Ryan was concerned about the gun. He immediately proceeded to the nearby house that was apparently associated with Saeed, arriving there at 4:15 p.m. He briefly entered the premises, determined that no one was inside, and had one of his officer’s secure the premises. While he was inside the house he observed a bloody sock, blood on the floor, and a bloody shoe. Det. Ryan remained at the front of the house for five or ten minutes, making arrangements to preserve evidence at both the house and at the damaged white sedan which was parked nearby. Consent was eventually obtained from the homeowners to search the house. The white sedan was towed to the police garage. FIS officers were called to photograph these scenes.
[42] At this point, Det. Ryan received information over the police radio from P.C. Loiselle. The information was that Saeed had made an utterance stating that he discarded the gun at the George B. Little Public School. This school was nearby, about 100 metres to the east of Det. Ryan’s location at the front of the house. His immediate concern was to find the gun before school re-opened the next day (the day after Labour Day). He proceeded to the school on the east side of Orton Park Road. He had an officer tape off a perimeter around the school and called the K-9 unit. The detectives remained outside the perimeter while the K-9 unit began searching the area around the school.
[43] At 4:37 p.m., while the school area was being searched, Det. Ryan received further information from P.C. Loiselle over the police radio. At this point, Det. Ryan understood that P.C. Loiselle and Saeed were in the ambulance. The new information was that Saeed had made an utterance stating that the gun was not at the school but had actually been discarded near a bridge over a creek at Mossbank Drive. This location was in the opposite direction, about one kilometre to the west of the house and the school where they had been searching for the gun. Mossbank Drive is closer to the location where the “hit and run” accident involving the white Nissan sedan had occurred. It is also closer to Markham Road and the Domino’s Pizza where the shooting incident occurred, which are also located to the west of the house and the school.
[44] The detectives drove to Mossbank Drive, which leads to Mossbank Park. They arrived at the park at 5:00 p.m. and found a bridge that crosses over a creek. The K-9 unit had ended its search of the school and had found nothing. They followed the detectives to Mossbank Park where they focused their search on the bridge area. Once again, the results were negative. At 5:20 p.m. the detectives conducted a further search of the tall grass and brush in the bridge area of Mossbank Park but they also found nothing. By this point, P.C. Loiselle and Saeed had gone to the hospital.
[45] At 5:45 p.m., the Major Crime Unit detectives returned to the house where they believed Saeed had first attended, after fleeing from Domino’s Pizza. They were interested in a cell phone that had been found on the ground near the house.
[46] At 6:09 p.m., the dispatcher contacted the detectives over the police radio and provided what turned out to be important information. A homeowner on Bow Valley Drive had called the police to advise that he had found blood on a path between the houses located at 71 and 73 Bow Valley Drive. This location was about one kilometre to the east of the house where Saeed appeared to have fled. The houses on Bow Valley Drive back onto Morningside Park, which is a large forested ravine. Det. Ryan and the other detectives arrived at this location within minutes of receiving this new information from the dispatcher.
[47] Det. Ryan spoke to the homeowner at 73 Bow Valley Drive, who had called the information in to the police. Det. Ryan observed what he described as “bloody footsteps” on the curb of the roadway in front of 73 Bow Valley Drive. This trail of “bloody footsteps” led up the driveway, continued down a pathway between 73 and 75 Bow Valley Drive, and led to the backyard which gives onto Morningside Park. Once again, Det. Ryan secured the area and called the K-9 unit. The detectives stayed out of the search area and let the K-9 unit conduct the initial search. The K-9 unit search began at about 6:15 p.m. They found a red Raptors baseball hat in the woods beyond the backyard of 73 Bow Valley Drive. This hat had evidentiary value because the person who discharged the firearm in Domino’s Pizza was wearing a similar hat. The K-9 unit searched for about one hour and did not find the firearm. The six detectives then conducted a further search of the area, from about 7:00 p.m. until it became dark at about 8:30 p.m., but they did not find the firearm. Det. Ryan testified that he had a strong belief that the firearm was in this ravine park area behind 73 and 75 Bow Valley Drive and so he made plans to return and continue searching the next day. He testified that finding a firearm is the highest priority kind of search. It was rough terrain with a lot of fallen trees and branches. It was also hot and there were a lot of mosquitoes, so the searching had not been easy.
[48] The detectives returned to the 43 Division station. After Saeed had been paraded and had spoken to duty counsel, Det. Ryan and another officer met with him in an interview room. It was around midnight. They confirmed that he had spoken to duty counsel and they asked if he wished to make a formal statement. Saeed replied, “No” but he then asked the officers to bring him to the areas where they had been searching, release him on his own, and he would retrieve the firearm and bring it to them. Det. Ryan declined this offer. He regarded it as inappropriate for a number of reasons. He felt that Saeed had wasted the officers’ time with a “wild goose chase” during the day, it was now dark out, and there would be safety issues. Det. Ryan testified that he would not even have agreed to take Saeed out in a police car. This entire exchange with Saeed in the interview room lasted about one minute. It was not recorded. Saeed never told Det. Ryan where the gun was located. He never mentioned Morningside Park. The Crown does not seek to tender these brief oral utterances at trial.
[49] The next day, September 4, 2018, the six Major Crime Unit detectives came in to work two hours early, at 12:00 noon. They returned to the 73 Bow Valley Drive search location and formed up at arm’s length in the backyard, at the end of the trail of blood. They conducted a “grid search” down the forested embankment of the ravine park. There is a creek just past the edge of the forest at the bottom of the ravine. After searching for awhile, Det. Ryan found a black backpack under a fallen tree at the edge of the forest, before reaching the creek. The zipper of the backpack was open and he could see the barrel of a firearm. He lifted it up and saw that there were bullets in the magazine. It was a rifle but “the entire stock and the length of the barrel had been cut off ” and it had a “pistol grip”. It was about 2:00 p.m. when Det. Ryan found the firearm. His estimate as to the distance from the backyard of 73 Bow Valley Drive to the fallen tree where the gun was found was not particularly reliable. However, he adopted his testimony at the preliminary inquiry to the effect that it was “probably 300 feet down the slope”.
[50] Det. Ryan testified that the information that P.C. Loiselle provided to the detectives on September 3, 2018 did not assist in the investigation. In fact it sent them to the west, which is the opposite direction from where the gun was found, which was to the east. None of the information obtained from Saeed was helpful and it did not influence their eventual search of Morningside Park. It was the information concerning the trail of blood between 73 and 75 Bow Valley Drive, provided by the civilian witness, that led the officers to search in the area where the gun was eventually found. Without this information, Det. Ryan was of the view that they would not have found the gun. Of all the areas where the relevant events happened and where the detectives searched, the gun was found in the location what was farthest to the east.
[51] In cross examination, Det. Ryan agreed that the ravine in Morningside Park could be described as “bush” but he disagreed that the location where the gun was found could be described as “bush behind or off the schoolyard” of George B. Little Public School. You could not see the schoolyard from where they found the gun. There was groomed grass behind the school and not forest or trees. He also agreed that there are creeks in Morningside Park but he did not see any bridges. The only bridge they found was the one in Mossbank Park.
(iv) The map of the relevant locations in Scarborough
[52] The map of the various locations where the relevant events occurred provided useful evidence on the Motion. The 73 Bow Valley Drive location, where the trail of “bloody footsteps” led the searching officers down into Morningside Park, is at the far north-east side of the map. The Mossbank Park location, where the bridge over the creek area was searched, is at the far south-west side of the map. The locations where the damaged white Nissan car was parked, where Saeed was arrested, and where the house with the bloody shoe was located is in the centre of the north side of the map. The George B. Little Public School is very close to these latter three locations.
(v) Analysis: the nature of the ss. 7 and 10(b) violations
[53] Although both the Crown and the defence agree that P.C. Loiselle violated Saeed’s ss. 7 and 10(b) Charter rights, they do not agree on the nature and extent of the violations. The Crown submits that the violations were two-fold, namely, failing to comply with the informational component of s. 10(b) in a timely way, and then questioning Saeed about the location of the firearm before complying with this informational component. The Crown goes on to submit that these violations were relatively brief and ended at about 4:25 p.m., when P.C. Loiselle complied with the informational requirements of s. 10(b) and when Saeed declined to exercise or invoke the implementation aspect of s. 10(b). The defence agrees with the Crown’s initial concessions but disputes the latter point, as to when the violations ended. It is important to resolve this dispute and make findings as to the nature and extent of the Charter violations, before turning to the two main issues on the Motion which relate to s. 24(2).
[54] The main components of the law relating to s. 10(b) rights was settled during the first ten years of Charter litigation, when the Supreme Court held that s. 10(b) includes three distinct duties. They were summarized by Lamer C.J.C., speaking for the majority of the Court in R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.):
This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
(See, for example, Manninen, at pp. 391-2; R. v. Evans, (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at pp. 304-5, and Brydges, at pp. 340-1.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. [Italics of Lamer C.J.C.].
[55] However, the exact meaning of the informational requirement, to inform the accused of s. 10(b) rights “without delay”, was not clarified or settled until 2009 when the Court decided R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at para. 42 (S.C.C.):
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [Emphasis added].
[56] It can be seen from Bartle and Suberu that all three s. 10(b) duties are qualified in that they can be delayed in “urgent and dangerous circumstances” or due to “concerns for officer or public safety”. These limits or exceptions to the three s.10(b) duties have been the subject of ongoing development in the case law. They are central to the issues in the present case.
[57] As I read P.C. Loiselle’s preliminary inquiry testimony, he believed that he was justified in delaying both the first “informational” duty and the third “refrain from eliciting” duty, because of his concern that a discarded firearm put public safety at risk. In my view, the facts of this case did not bring P.C. Loiselle within the Bartle and Suberu limits or exceptions to s. 10(b) Charter duties, as those limits have been defined in the case law. The law relating to these justifications for delaying s. 10(b) rights was recently summarized by Doherty J.A., speaking for the Court in R. v. Rover (2018), 2018 ONCA 745, 366 C.C.C. (3d) 103 at paras. 25-27 (Ont. C.A.):
Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at paras. 38, 42; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), at pp. 191-92.
The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 (S.C.C.), the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont. S.C.J.), at paras. 71-75.
These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70 (B.C. C.A.), at para. 41; R. v. Soto, 2010 ONSC 1734 (Ont. S.C.J.), at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78. [Emphasis added].
The Court of Appeal’s reasons in Rover were released nine days after the events in the present case. Even more recently, a line of post-Rover authorities in the Court of Appeal has helped to further clarify when s. 10(b) duties can and cannot be delayed. See: R. v. La (2018), 2018 ONCA 830, 366 C.C.C. (3d) 351 at paras. 38-42 (Ont. C.A.); R. v. Noel, 2019 ONCA 860; R. v. Griffith, 2021 ONCA 302 at paras. 35-38 and 43-47; R. v. Leonard, 2020 ONCA 802 at paras. 12-15.
[58] In cases where a loaded firearm is seized on arrest and needs to be proved safe, or where there is a violent struggle, or where the public has gathered around the scene of arrest, short delays (such as eight minutes) in complying with s. 10(b) informational duties have been held to be justified. See, e.g. R. v. Griffith, supra at paras. 14-17; R. v. Byfield, Turner and Curry, 2012 ONSC 2781 at paras. 104-107, aff’d R. v. Curry, 2013 ONCA 420, R. v. Turner, July 8, 2013 (Ont. C.A.). There were no such circumstances in the present case. No gun was seized on arrest, there was no struggle on arrest, the accused was injured and was easily handcuffed and seated at the curb, no crowd had gathered around, and P.C. Loiselle had support and “back-up” from the other PSRT officers who were at the scene. In other words, there were no officer safety concerns. P.C. Loiselle could have complied with his s. 10(b) informational duties during the approximately two minute period between 4:12 and 4:14 p.m., after the arrest and while they waited for EMS to arrive, subject only to his concerns about Saeed’s “distress” due to his injuries. P.C. Loiselle frankly acknowledged this proposition during cross-examination. His real concern was not with any danger to the police or public at the scene of the arrest. Rather, his concern was simply to find the discarded or hidden gun. In my view, this broad concern for public safety was legitimate in its generality but it would apply in any case involving a firearm, where the firearm was not seized upon arrest. The rule emerging from Rover, set out above, ensures that Charter rights are only temporarily suspended in those cases where narrow case-specific justifications exist. In other words, the exceptions to immediately complying with s. 10(b) duties cannot become so broad that they overtake the rule.
[59] It should also be noted that P.C. Loiselle’s decision to suspend Saeed’s s. 10(b) informational rights at the roadside, on the basis of a public safety need to find the discarded or hidden gun, required him to interrogate Saeed and obtain self-incriminating information. This led to the further s. 10(b) violation which involved the third duty, namely, “to refrain from eliciting evidence from the detainee”. Although this third s. 10(b) duty has always been subject to its own internal limitation (“in cases of urgency or danger”), this limitation has rarely been applied. For example, in drinking and driving investigations, s. 10(b) rights are subject to s.1 reasonable limits and are suspended during roadside detentions, in order to allow the police to collect self-incriminating information from the suspect through the use of both statutory and common law powers of compulsion. There are, of course, limits on the permissible uses of this compelled self-incrimination. A similar power could arguably be developed in cases like the present one, involving the dangerous use of loaded firearms that have not been recovered on arrest. However, it would require legislation to be passed, or a proper evidentiary record supporting new common law police powers, as was done in order to counter the prevalence and the harm to public safety caused by drinking and driving. See: R. v. Thomsen (1988), 1988 CanLII 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.); R. v. Orbanski; R. v. Elias (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.); R. v. Seo (1986), 1986 CanLII 109 (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.); R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.).
[60] None of these legislative or common law steps have ever been taken, in order to develop a broad s. 1 reasonable limit on s. 10(b) Charter rights during police investigations of certain dangerous firearms offences. P.C. Loiselle was, in effect, trying to develop such a power in the present case on the basis of his generalized concern for public safety whenever a firearm recently used in an offence has not been seized upon arrest. Once again, his concern for public safety was legitimate in its generality, but it would apply in all such cases. It, therefore, fails to satisfy the case-specific requirements set out in Rover for temporarily suspending s. 10(b) rights.
[61] For all the above reasons, I agree with the position taken jointly by the Crown and defence, concerning the s. 10(b) violations that occurred between 4:12 and 4:25 p.m., immediately after Saeed’s arrest at the roadside. The further question, on which the parties do not agree, is whether these s. 10(b) violations ended at 4:25 p.m. At this point, the Crown submits that P.C. Loiselle complied with the informational requirements of s. 10(b) and Saeed failed to assert or express a desire to exercise his s. 10(b) rights. This is essentially a factual issue on which the only evidence is P.C. Loiselle’s preliminary inquiry testimony. Saeed did not testify on the s. 10(b) Charter Motion and no other officer was present and able to testify as to exactly what happened at 4:25 p.m., once the paramedics had finished their preliminary treatment of Saeed.
[62] I have already summarized P.C. Loiselle’s evidence on this point (at paras. 33-5 above). I am satisfied that P.C. Loiselle complied with the informational requirements of s. 10(b), reading the standard caution from his memo book and asking “do you understand” and “do you wish to call a lawyer.” I am also satisfied that Saeed replied “yes” and “I don’t have one” to these two questions. Finally, I am satisfied that P.C. Loiselle then said, “we will call duty counsel for you at the station.” This account of what happened at 4:25 p.m. was repeated at three different points during P.C. Loiselle’s testimony, in a generally consistent manner (at pp. 85, 91-2, and 131-2 of the preliminary inquiry Transcript). In my view, there is nothing in this account supporting the Crown’s position that Saeed failed to indicate a “desire to exercise this right.” He simply said that he did not have a lawyer. Furthermore, it appears that P.C. Loiselle understood Saeed’s responses to mean that the police were required to implement his s. 10(b) rights by placing a call to duty counsel when they arrived at the station. When P.C. Loiselle repeated the s. 10(b) caution at 8:55 p.m., he got essentially the same responses from Saeed and he again assured Saeed that duty counsel would be called once they arrived at the station.
[63] At this point in the narrative, the facts do not support the Crown’s submission that Saeed did not wish an opportunity to exercise his s. 10(b) rights or that he was waiving his right to speak to counsel. The only support for the Crown’s position in this regard, is P.C. Loiselle’s further testimony to the effect that at some point Saeed said “I am good” and that “he wasn’t interested” in the secondary caution. This evidence was unclear when it first emerged in-chief (at p. 85). Defence counsel cross-examined on it and P.C. Loiselle testified that he did not take these responses to amount to “a waiver” of “rights to counsel” because Saeed was “very agitated” and “very upset” (at pp. 124-5). Finally, in re-examination P.C. Loiselle essentially repeated the unclear account he had previously given in-chief, to the effect that he told Saeed that the police would call duty counsel for him when they arrived at the station and Saeed “implemented he was good, he was not interested. That’s what I got” (at pp. 131-2).
[64] The law is settled that the standard for an implied waiver of s. 10(b) rights is “very high” and that it must be “clear and unequivocal”. As I read the record, and without the ability to ask P.C. Loiselle clarifying questions, his account is that he initially understood Saeed to be asserting his right to counsel and that the police twice told Saeed that his right would be implemented with a call to duty counsel once they arrived at the station. Saeed then made some further unclear remarks from which P.C. Loiselle inferred that Saeed was “not interested” in such a phone call. I cannot conclude, on the above ambiguous record, that Saeed implicitly waived his s. 10(b) rights. See: R. v. Clarkson (1986), 1986 CanLII 61 (SCC), 25 C.C.C. (3d) 207 at 217-219 (S.C.C.); R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 393 (S.C.C.); R. v. Ross and Leclair (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 at 135-6 (S.C.C.); R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330 at 341 (S.C.C.).
[65] In the result, I am satisfied that the ss. 7 and 10(b) violations continued from 4:25 until approximately 5:00 p.m. when the K-9 unit arrived at Mossbank Park and began a search of the second area where Saeed implied that he had disposed of the gun. At this point, the ambulance left the scene of the search, drove Saeed to the hospital, and there was no further questioning by P.C. Loiselle. During the 35 minute period from 4:25 to 5:00 p.m., it appears that Saeed made a number of somewhat spontaneous utterances about where the police should search for the gun. However, it also appears that these utterances were the continuing product of P.C. Loiselle’s earlier questioning during the 13 minute period from 4:12 to 4:25 p.m., which included P.C. Loiselle’s “demand” that Saeed tell him “where the firearm is”. In other words, the process of eliciting incriminating information from Saeed was continuous during the 48 minute period from 4:12 until 5:00 p.m. It is unrealistic to suggest that there was any significant break in this chain of events at 4:25 p.m., when P.C. Loiselle advised Saeed of his s. 10(b) rights.
[66] In the above analysis, I have not differentiated between the s. 7 right to silence violation and the s. 10(b) right to counsel violation. The two rights are closely intertwined and, in my view, they were simultaneously violated by P.C. Loiselle’s questioning, especially when his questioning admittedly became a “demand”. See: R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.); R. v. Sinclair (2010), 2010 SCC 35, 259 C.C.C. (3d) 443 (S.C.C.).
[67] Before concluding this analysis of the nature and extent of the Charter violations, I should point out that there were five ways in which the gravity of the violations was mitigated, at least to some degree, as follows:
- First, P.C. Loiselle expressly told Saeed that he was delaying providing advice about his right to counsel, until after Saeed had received medical attention from EMS. This is an unusual feature of the present case. It is not seen in the cases in the Rover line of authority, cited above, where the accused were generally not told the reasons justifying delay. Indeed, a 13 minute delay in complying with s. 10(b) informational duties in this case might well have been justified by Saeed’s “distress” and his need for medical treatment. The far more serious ss. 7 and 10(b) Charter violation was interrogating him during this otherwise justified period of delay;
- Second, P.C. Loiselle did comply with the s. 10(b) informational duties, as soon as Saeed had received treatment from the EMS paramedics. He then repeated the s. 10(b) informational caution at the hospital. In other words, P.C. Loiselle did exactly what he told Saeed he would do, in relation to the reason for delaying the s. 10(b) informational duties;
- Third, P.C. Loiselle twice told Saeed that he would arrange a phone call to duty counsel, as soon as they arrived at the police station. This promise was kept and a call from duty counsel was arranged shortly after Saeed had been booked at 43 Division. Once again, this feature distinguishes the present case from a number of the cases in the Rover line of authority where there were lengthy unexplained and unjustified delays in facilitating a call to counsel;
- Fourth, P.C. Loiselle kept an accurate and apparently detailed record of the relevant events, openly and transparently disclosing what I have found to be Charter violations in this case. This shows some degree of honesty and integrity, consistent with his asserted belief that his actions were “justified.” It is a far cry from more aggravated cases where police officers have been found to be less than forthright or to have actually lied about Charter-infringing conduct;
- Fifth and last, there appears to have been some element of gamesmanship and bargaining on Saeed’s part, which played some role in this case. He twice led the police to search locations where the gun had not been hidden (the George B. Little Public School and the bridge at the creek in Mossbank Park). He twice negotiated, with both P.C. Loiselle and Det. Ryan and even after he had received legal advice, trying to appear willing to help the police find the gun but only on his own terms. Some of this conduct has elements of an implied waiver of ss. 7 and 10(b) rights (which appeared to have had some influence on P.C. Loiselle who concluded that Saeed was “remorseful”).
[68] For all the above reasons, the ss. 7 and 10(b) violations continued for 48 minutes, from the arrest at about 4:12 p.m. until the ambulance left for the hospital at about 5:00 p.m. The initial 13 minute delay in complying with s. 10(b) informational duties could have been justified by Saeed’s “distress” and his need for medical treatment. However, eliciting incriminating information from him could not be justified. Nevertheless, the gravity of these violations was somewhat mitigated by the five circumstances set out above.
(vi) Analysis: whether the firearm was “obtained in a manner”.
[69] The defence seeks the remedy of exclusion of the firearm from the body of evidence to be heard at trial, pursuant to s. 24(2) of the Charter. That remedial section of the Charter has two requirements, as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute [Emphasis added].
[70] The first requirement is that the evidence to be excluded (the firearm in the present case) must have been “obtained in a manner that infringed or denied any rights”. In this case, the only infringement of rights was P.C. Loiselle’s interrogation of Saeed, between 4:12 and 5:00 p.m., in violation of ss. 7 and 10(b). Accordingly, the first issue is whether the firearm was “obtained in a manner that infringed” Saeed’s ss. 7 and 10(b) rights.
[71] The complex and nuanced law relating to the s.24(2) “obtained in a manner” requirement, was recently analysed and summarized by Laskin J.A., speaking for the Court in R. v. Pino (2016), 2016 ONCA 389, 337 C.C.C. (3d) 402 at paras. 50-56 and 72 (Ont. C.A.):
On a superficial reading of s. 24(2) one might be tempted to conclude that the “obtained in a manner” requirement can only be met by a causal connection between the breach and the discovery of the evidence: “but for” the breach the evidence would not have been discovered. But the Supreme Court has long recognized that a causal connection is unnecessary.
Instead, beginning with Strachan, the Supreme Court has taken an increasingly generous and broad approach to the “obtained in a manner” requirement in s. 24(2) – an approach that looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.
So, in Strachan itself, Dickson C.J.C. held that “obtained in a manner” did not require a causal connection between the Charter breach and the evidence. A temporal connection would be enough, so long as it was not too remote and so long as the breach and the discovery of the evidence occur “in the course of a single transaction”. The Chief Justice emphasized that the court should look at the “entire chain of events”. And there should be no bright line rule; “these situations should be dealt with on a case by case basis.”
Two years after Strachan, in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190 (S.C.C.), at p. 210, Lamer J. held that the connection between the Charter breach and the evidence should be looked at broadly: “…s. 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence.”
Then, in 2004, in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45, Doherty J.A. added “contextual” to the list of connections that could satisfy the “obtained in a manner” requirement, and he succinctly summarized the Supreme Court’s approach:
The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous. [Citations omitted.]
Four years later in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, Fish J., for a unanimous court, adopted Doherty J.A.’s formulation in Plaha, and stressed that the court’s approach to the “obtained in a manner” requirement should be both “purposive” and “generous”:
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
A generous approach to the “obtained in a manner” requirement makes good sense because this requirement is just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute. And, as the trial judge in the appeal before us acknowledged, the addition of “contextual” to “causal” and “temporal” as connections, “loosened” the “obtained in a manner” requirement.
Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):
- The approach should be generous, consistent with the purpose of s. 24(2)
- The court should consider the entire “chain of events” between the accused and the police
- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
- But the connection cannot be either too tenuous or too remote.
[72] Applying the above principles, I am satisfied that there was no causal connection between P.C. Loiselle’s improper interrogation of Saeed and the eventual finding of the firearm. Defence counsel attempted to establish an admittedly weak causal link between Saeed’s initial information about the gun being “in the bush by G. Little School” and the later finding of the gun in the Morningside Park ravine. Det. Hayes’ testimony did not support this attempt and the known facts contradict it. The location where the gun was eventually found at the edge of the ravine forest was some distance to the east of the school and it had no connection to the school. In any event, when the police began to search the school area, Saeed directed them “to go the other way … go to Mossbank Park”. The police then proceeded to search Mossbank Park, which was even farther to the west from where the gun was eventually found. The gun was clearly not found in either of the two places where Saeed had directed the police to search. Furthermore, he made no mention of Morningside Park or Bow Valley Drive, which is where the gun was found. Det. Hayes described Saeed’s information as leading the police on a “wild good chase” that was of no assistance in their various searches for the gun. I agree with this characterization.
[73] There was also no temporal connection between the violations of Saeed’s rights and the finding of the firearm. Saeed was arrested at 4:12 p.m. on September 3, 2018 and was improperly questioned for about 48 minutes, until 5:00 p.m. when he was driven to the hospital in an ambulance with P.C. Loiselle. At this time, the police were conducting their futile search of Mossbank Park. There were no further violations of Saeed’s rights and he provided no further information. At 5:45 p.m., the Major Crime Unit detectives returned to the original scene of the arrest. At 6:09 p.m., the police dispatcher advised the detectives that a civilian homeowner on Bow Valley Drive had called and provided information about blood he had found on a pathway next to his house. The police immediately attended at this new location and observed “bloody footprints” leading to the homeowner’s backyard, which gave onto Morningside Park. This was the critical development in the investigation which eventually led to the finding of the firearm, according to Det. Hayes. Once again, I agree with this officer’s characterization as to how the investigation developed. The police began an exhaustive search of the forested ravine behind the Bow Valley Drive house. The search proceeded in three stages: an initial K-9 unit search that began at about 6:15 p.m., in which the officers discovered a red Raptors hat that was arguably connected to the shooting; a further search on foot until about 8:30 p.m. that evening, during which the officers found nothing and ended the search because it was becoming dark; and a “grid search” on foot the next day, starting at 12:00 noon, that eventually led to the firearm being found about 300 feet down the embankment behind the house on Bow Valley Drive. It was about 2:00 p.m. on that second day of the investigation (September 4, 2018) when the firearm was found. This was 21 hours after Saeed’s improper questioning by P.C. Loiselle had ended. In my view, any temporal connection between the Charter breach and the finding of the firearm is remote and tenuous.
[74] In this regard, Doherty J.A. explained in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 at paras. 49-51 (Ont. C.A.) that the analysis of any temporal connection between a Charter violation and the subsequent discovery of evidence “requires more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time.” He went on to point out, on the facts of Plaha, that “virtually nothing had changed in the six and a half hours between” the Charter violations and the obtaining of the evidence that was at issue. He noted that the evidence was obtained “in the same place, by the same two police officers … using the same approach,” and that it was all “part of the same interrogation process.” In the present case, by way of contrast, a great deal changed during the 21 hours between P.C. Loiselle’s Charter violations and Det. Ryan’s discovery of the firearm. Different officers were involved at a different location, they were acting on the basis of new information from an independent civilian witness, and the accused was now at the police station awaiting his first court appearance after consulting with duty counsel. In other words, the investigation had moved on to a qualitatively different stage during the 21 hour interval, severing any possible temporal connection between the earlier Charter violations and the later finding of the firearm.
[75] In addition, it cannot be said that the finding of the gun and the violations of Saeed’s rights were “part of the same transaction or course of conduct”. The transaction and the conduct surrounding the violations of Saeed’s rights all related to P.C. Loiselle’s arrest and improper questioning of Saeed. That transaction or course of conduct was carried out by PSRT officers, it ended at 5:00 p.m. when the ambulance drove Saeed to the hospital, and the PSRT officers had no involvement in the next stages of the investigation. A fresh transaction or chain of events began at 6:09 p.m., when an entirely new civilian witness volunteered information that led the 43 Division Major Crime Unit detectives to the home at 73 Bow Valley Drive, where the “bloody footprints” led the detectives to the heavily forested ravine park behind the house. None of these latter developments had any connection to Saeed, to P.C. Loiselle, to the improper interrogation, or to any of the PSRT officers who had been involved in Saeed’s arrest. In other words, there were two quite distinct stages in the investigation that cannot reasonably or fairly be described as “part of the same transaction or course of conduct.”
[76] The only aspect of the complex “obtained in a manner” test that could possibly be engaged in this case is a “contextual” connection. In R. v. Pino, supra at para 74, Laskin J.A. described this kind of connection as follows:
The connection between the evidence and the breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino’s arrest. The connection is also “contextual”. I take “contextual” – a word often used by lawyers and judges – to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino’s arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. 10(b) breaches form “part of the context” in which the s. 8 breach occurred [Emphasis added].
[77] Applying the above reasoning, “the something that happened” in the present case was P.C. Loiselle’s improper questioning of Saeed upon arrest and during the two futile searches of the George B. Little Public School and Mossbank Park. This improper questioning related to police efforts to find the gun and the information obtained from Saeed was then relayed by P.C. Loiselle, over the police radio, to Det. Hayes and the searching officers up until about 5:00 p.m. The fresh information obtained from the civilian homeowner at 6:09 p.m. also related to ongoing police efforts to find the gun and it was also relayed over the police radio (by the dispatcher) to the searching officers. In other words, the police were continuously receiving information over their radio from different sources and were continuously trying to find the gun on the basis of that information. In this broad sense, there was an ongoing similar subject matter or investigative purpose that connected the Charter violations and the eventual finding of the gun. The issue is whether this is a sufficient “contextual” connection to satisfy the s. 24(2) threshold requirement.
[78] In R. v Boutros (2018), 2018 ONCA 375, 361 C.C.C. (3d) 240 at paras. 11-14 and 19-27 (Ont. C.A.), the Court of Appeal addressed the “obtained in a manner” issue in a case involving a somewhat analogous set of facts. In Boutros, there were two separate s. 10(b) Charter violations. The police had arrested the accused and were seeking evidence from his cell phone and from him relating to whether he was the “getaway” driver in a robbery. As in the present case, the police improperly interrogated the accused on arrest, in violation of s. 10(b) of the Charter. Also like the present case, the Crown wisely decided not to tender the accused’s improperly obtained statements in evidence at trial. This was the first s. 10(b) violation. Several hours after the arrest, when the accused was in his cell at the station, the police renewed the s. 10(b) Charter violations when they “demanded the appellant’s password for the cellphone the police had seized from him,” without first giving him an opportunity to consult with counsel, and then “used the password to access the phone and look at the call logs.” This was the second s. 10(b) violation. Three days later, different police officers obtained a lawful production order, without relying on any of the improperly obtained utterances or evidence elicited from the accused by the arresting officers. Speaking for the Court, Doherty J.A. first addressed the earlier s. 10(b) violations, committed at the time of the accused’s arrest. He held that there was “nothing to connect the s. 10(b) violations that occurred when the appellant was arrested … to any investigative steps that eventually led to the production of the text messages.” In particular, he stated that there was “no hint that the officer [who subsequently obtained the lawful production order] relied on anything the appellant may have said, or any evidence obtained as a result of something he said, in applying for the production order. The obtaining of the text messages under the authority of the production order was unrelated to those s. 10(b) breaches. Those breaches could not precipitate an inquiry under s. 24(2) into the admissibility of the text messages. It is not enough that the s. 10(b) breaches occurred during the same investigation that yielded the text messages” [Emphasis added].
[79] Doherty J.A. held that the first s. 10(b) violation that occurred on arrest in Boutros did not meet the threshold s. 24(2) “obtained in a manner” requirement, for the reasons summarized above. However, he reached a different conclusion in relation to the second s. 10(b) violation, when the arresting officers approached the accused in his cell at the station, demanded his cell phone password and then used it to examine his call logs. Relying heavily on the Supreme Court decision in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 at 197-8 (S.C.C.), Doherty J.A. held that the threshold s. 24(2) issue in relation to this second s. 10(b) violation, and its connection to the subsequent lawful obtaining of the text messages, was whether “the Charter breaches … were integral to the investigative process that ultimately led to the acquisition of the text messages by the police.” He then reasoned as follows in relation to this issue:
The efforts to access the contents of the cellphone began when the police lawfully seized the cellphone when they arrested the appellant and continued when the police officer demanded that the appellant provide his password. Those efforts culminated in the obtaining of the text messages pursuant to the production order … Although I would hold that the s. 10(b) breaches that occurred at the time of arrest … did not engage s. 24(2), I come to the opposite conclusion in respect of the police demand that the appellant provide his password for the cellphone … That breach was integral to police efforts to obtain the contents of the text messages, which were eventually produced under the production order. This s. 10(b) breach is sufficiently connected to the text messages to trigger s. 24(2).
[80] The facts of the present case are not perfectly analogous to the facts of Boutros or Grant, which was the root Supreme Court case relied on in Boutros. However, in applying the “integral to the investigative process” test that emerges from those two cases, it is noteworthy that in both Grant and Boutros the police obtained useful information as a result of the constitutional violations. In Grant, the two unlawful perimeter searches yielded relevant circumstantial evidence about the marijuana grow-op and in Boutros the demand for the cellphone password (without an opportunity to consult with counsel) yielded the password and the call logs in the phone. The police ultimately did not need this information, as they had sufficient lawfully obtained evidence to apply for the search warrant in Grant and for the production order in Boutros. Nevertheless, the constitutional violations yielded relevant helpful information that could reasonably be described as “integral to the investigative process.”
[81] In the present case, the improper interrogation of Saeed yielded no useful information that could be described as “integral” to the investigative process. That investigative process was the ongoing police efforts to search for and find the firearm. The information flowing from P.C. Loiselle’s questioning of Saeed actually interfered with that process by leading the police on “a wild goose chase”, in a direction away from where the gun had been hidden. The s. 10(b) violations did result in self-incriminating utterances which, as in Boutros, the Crown has decided not to tender in evidence and which I would have excluded. Paraphrasing Doherty J.A’s reasoning in Boutros, the fruits of these earlier s. 10(b) violations were not “relied on” during the eventual search of the ravine and there was “nothing to connect [them] … to any investigative steps that eventually led to” the seizing of the firearm. In my view, the only contextual connection between the Charter violations and the finding of the firearm is that they were both part of the ongoing investigative goal of trying to find the gun. As I read Boutros, this broad common investigative purpose is not a sufficiently “integral” contextual connection to trigger s. 24(2). The early s. 10(b) violations in that case had the same broad investigative purpose as the eventual production order obtaining the text messages, namely, seeking information that the accused was a party to the robbery. As Doherty J.A. stated, the fact that the breach and the finding of the evidence were both part of “the same investigation” is not a sufficient connection. This kind of broad ongoing common investigative connection will arguably exist in every case.
[82] In conclusion, there was no causal link between the violations of Saeed’s rights on the day of his arrest and the finding of the gun in Morningside Park on the afternoon of the next day. I accept Det. Hayes’ evidence that the information provided by P.C. Loiselle was of no assistance in his eventually successful search for the gun. I found Det. Hayes to be an entirely credible witness and his investigative determination to find the gun in the forested ravine behind 73 Bow Valley Drive was driven entirely by the discovery of the trail of “bloody footsteps.” In addition, the 21 hour temporal link between the violations and the finding of the gun is “remote”, as that term is used in the leading s. 24(2) cases where causal and temporal connections are considered together. As Sopinka J. explained in R. v. Goldhar (1996), 1996 CanLII 214 (SCC), 107 C.C.C. (3d) 481 at para. 40 (S.C.C.), speaking for eight members of the Court in holding that the evidence at issue in that case was not “obtained in a manner”:
Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan [Italics of Sopinka J. in the original; underlining added for emphasis].
[83] Applying the reasoning from Goldhar and Boutros, there is nothing more than a weak contextual connection between the violations and the finding of the gun, in the sense that the officers were continuously looking for the gun, both when Saeed’s rights were violated on the first day of the investigation and when they conducted a successful “grid search” of the Morningside Park ravine on the second day. In other words, the broad investigative purpose or subject matter remained the same at the time of the breach and at the time when the evidence was discovered, as it was in both Goldhar and Boutros. When this weak contextual or investigative subject matter connection is considered together with the non-existent causal connection and the remote temporal connection, I am satisfied that the evidence sought to be excluded was not “obtained in a manner that infringed” Saeed’s rights.
(vii) Analysis: whether admission of the evidence “would bring the administration of justice into disrepute”
[84] In light of the above finding, that the first s. 24(2) requirement has not been met, it is not strictly necessary to consider the second s. 24(2) requirement relating to the repute of the administration of justice. However, given the complexity and subtlety of the law relating to the first requirement and given that I have also concluded that the second requirement is not met, I will set out my analysis of the second requirement.
[85] The three sets of Grant factors relating to the second requirement are well known, namely: the seriousness of the Charter-infringing state conduct; the impact of the violations on the accused’s Charter-protected interests; and society’s interest in the adjudication of the case on the merits. See: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).
[86] In terms of the gravity of the Charter violations, I have already set out five circumstances (at para. 67 above), which I will not repeat, that mitigate the gravity of the violations to some degree. In my view, the delay in informing Saeed of his s. 10(b) rights was not serious. It was relatively brief, it was justified to some extent by his need to receive medical attention, and it was quickly remedied once he had received medical treatment and he was then fully and properly informed of his s. 10(b) rights. The real concern in relation to this first set of Grant factors is P.C. Loiselle’s decision to interrogate Saeed and “demand” that he tell the police where to find the gun, prior to carrying out the required s. 10(b) informational and implementation duties.
[87] This latter aspect of the Charter violations was undoubtedly serious as it sought to elicit self-incriminating information from the accused and it undoubtedly violated the duty to “hold off” and not “elicit evidence from the detainee.” Having said that, there are recognized exceptions or limits to these s. 10(b) duties, as explained above. P.C. Loiselle openly and honestly sought to bring himself within these exceptions. He failed in these efforts, on the particular facts of this case, but the Rover line of authority does require some care and reflection in its application, as illustrated by the line of post-Rover cases cited above. P.C. Loiselle was not questioned as to the source or basis for his belief that it was appropriate to immediately question an accused upon arrest, shortly after the public discharge of a firearm and when the gun has not yet been found and seized. There is no evidence of any systemic or long-term problem associated with this particular violation. It appears to be a judgement call made by one individual officer in the course of a serious investigation where there were legitimate public safety issues. He obviously made the wrong judgement call in this case. I would situate the first set of Grant factors in the mid-range of gravity. They favour exclusion of the evidence. See: R. v. Griffith, supra at para. 67; R. v. Leonard, supra at paras. 8-9 and 15; R. v. Pileggi (2021), 68 C.R. (7th) 223 at paras. 115-119 (Ont. C.A.).
[88] Turning to the second set of Grant factors, I am satisfied that there was minimal impact on Saeed’s Charter-protected interests. None of the implicitly self-incriminating statements that Saeed made to P.C. Loiselle are being tendered at trial, and I would have excluded them in any event pursuant to s. 24(2). There will be no reference to them at trial, in any fashion. Ms. Pennypacker fairly conceded that these remedies ameliorate the impact of the Charter violations. Equally importantly, Saeed’s statements to P.C. Loiselle did not lead the police to discover any further incriminating evidence. In this regard, I have already found that there was no causal connection between Saeed’s statements and the finding of the loaded firearm. The police found the firearm completely independently, based on information lawfully volunteered by a civilian witness. Finally, as noted above (at para. 67), the s. 10(b) violations were mitigated by P.C. Loiselle’s conduct in informing Saeed of the reason for the initial 13 minute period of delay, by twice carrying out the s. 10(b) informational duty, by twice undertaking to make a call to duty counsel upon arrival at the station, and by carrying out that undertaking in a timely way. In all these circumstances, the only real impact of the ss. 7 and 10(b) Charter violations was the psychological pressure from P.C. Loiselle’s interrogation, without the benefit of counsel’s legal advice. In this regard, as noted above (at paras. 48 and 67), Saeed appeared to want to engage with the police to some degree, for his own purposes and even after receiving legal advice. This second set of Grant factors does not favour exclusion of the evidence. See: R. v. Pileggi, supra at paras. 107-8 and 120-125; R. v. Lenhardt (2019), 2019 ONCA 416, 437 C.R.R. (2d) 328 at para. 11 (Ont. C.A.); R. v. Leonard, supra at paras. 8-9 and 15; R. v. Boutros, supra at paras. 38-9.
[89] Finally, the third set of Grant factors strongly favours admission of the loaded firearm at trial. It is reliable real evidence and it is essential to the Crown’s ability to prove at least two of the counts in the Indictment, including the most serious offence (s. 95 possession of a loaded prohibited or restricted firearm). I agree with Ms. Pennypacker that the Crown’s case relating to careless use of a firearm and the two driving offences does not require tendering the firearm in evidence. However, the firearm is not visible in the video surveillance from the pizza shop and it has to be produced in evidence in order to prove that it is a prohibited firearm. See: R. v. Boutros, supra at paras. 42 and 46; R. v. Pileggi, supra at paras. 126-7; R. v. Griffith, supra at paras. 76-7.
[90] Balancing the three sets of Grant factors, it is only the gravity of the violation that favours exclusion and its weight is not as strong as in some cases. The third set of Grant factors strongly favours admission of the evidence and the second set of factors does not favour exclusion. In my view, the administration of justice would be brought into disrepute by excluding reliable, independently discoverable, and essential evidence of a loaded prohibited firearm, in a case where situation-specific individual police misconduct had little impact on the Charter-protected interests of the accused.
[91] For all these reasons, the pre-trial Motion seeking to exclude the loaded firearm from evidence at trial is dismissed.
[92] I would like to thank both counsel for their high standards of advocacy and professionalism when conducting these two pre-trial Motions.
M.A. Code J.
Released: July 20, 2021